A peek inside the “secret, backroom” net neutrality meetings

A reform group is still up in arms about the FCC's supposed "secret" meetings …

Free Press is still up in arms over what the reform group calls the Federal Communications Commission's "back room" meetings with big corporations to cut a deal on net neutrality rules.

"Despite public outrage and repeated promises of transparency, the FCC continues to meet behind closed doors with the largest companies to negotiate a secret deal that would short circuit public participation in policymaking that will shape the Internet for a generation," declared Free Press's Josh Silver in a message just sent to us. "The great irony here is that the FCC's 'transparency' policy is part of the negotiations behind closed doors."

Which stakeholders

We've been following this story since late June, when the news first surfaced about these meetings. They don't seem to be related to any single FCC proceeding. Rather, the focus is on some compromise deal on Internet nondiscrimination rules with which everyone can live, possibly enacted over on Capitol Hill, rather than via the Commission.

"Some stakeholders have shared their ideas with staff at the Commission, including ideas for legislative options," FCC Chief of Staff Edward Lazarus wrote on the FCC's blog. "To the extent stakeholders discuss proposals with Commission staff regarding other approaches outside of the open proceedings at the Commission, the agency's ex parte disclosure requirements are not applicable."

Lazarus' point here is that since ex parte rules only apply to specific rule-making or inquiry proceedings, the FCC's disclosure rules technically don't apply.

But for "secret," "closed," "back room" meetings, these have been remarkably open affairs. Here's the sordid history of these allegedly clandestine gatherings, summaries of which we found as plain as day on Lazarus' blog.

June 22

A small battalion of corporate biggies piled into the offices of Lazarus' office to talk up "details relating to prospective legislation relating to open Internet principles." The attendants included representatives from Verizon, Google, Skype, and the National Cable and Telecommunications Association, but it also included a rep from the Open Internet Coalition, which includes Free Press.

June 23

The next day the same crew had themselves another session. Markham Erickson of the Open Internet Coalition sent in a summary of the conversation, which touched on the following issues:

Prohibitions on blocking legal content and interfering with attachment of nonharmful devices;

Possible legislative language for a nondiscrimination principle;

Treatment of specialized services;

Transparency of broadband Internet service performance and network management practices;

An enforcement regime to protect consumers; and

The applicability of the principles to wireless platforms.

June 24

Of course it wouldn't be a picnic without the Motion Picture Association of America dropping by. Ars readers can doubtless guess what was discussed, but here's the thumbnail for the record:

"The purpose of the meeting was to discuss possible legislative proposals, in particular stressing that reasonable steps taken to address the transfer of unlawful content would not violate open internet principles," an MPAA wrap-up of the meeting concluded. The June 22/23 group also dropped by again for another conversation on the same bullet points.

June 28

Sprint showed up on the last Monday of June. As we've reported, the company is in sync with general telco opposition to the FCC partially reclassifying ISPs as Title II common carriers, but less vehemently so than AT&T and Verizon. Sprint's big issue is connectivity with those latter companies.

"In particular, Sprint emphasized the need to ensure access to data roaming and IP/VoIP interconnection" with other carriers, Sprint's summary of their conversation explained.

July 12, 14, and 19

Next, Google, Skype, and the Open Internet Coalition had their own session with the FCC, which mostly focused on possible legislative ways to ban the blocking of legal content. Two days later the NCTA, Verizon, and AT&T checked in for another meeting.

Then on July 19 a very mixed group gathered to offer solutions. The guests included the MPAA, the Directors Guild of America, Public Knowledge, and the Center for Democracy and Technology—the last two organizations were often at odds with the positions of the first two.

Concerns that open Internet principles apply solely to lawful content;

Concerns about the FCC's jurisdiction over copyright law;

The importance of respecting privacy and protecting free speech;

Concerns about the possible implications of a nondiscrimination principle on the jobs, incomes, benefits, and creative output of Americans employed in the creative and entertainment industries.

The latest: on July 23, the June 22 group did a repeat performance of their prior discussions.

These conversations have all been earmarked in the FCC's two main net neutrality proceedings—broadband reclassification and open Internet proposals. But because they go beyond specific agency rules and deal with ideas for Congressional action, the Commission has more leeway to pick and choose with whom they wish to meet.

In that sense, they're less open than normal FCC gatherings, and it's unclear whether other groups are going to get their chance to tell the agency what Congress should do. But if everybody ran their "secret" meetings the way the Commission is running them here, Washington, DC would be a much more transparent place.

Update

Since we posted this story, the FCC has revised its public list of these meetings. The roster now includes conferences with the American Cable Association, XO Communications, T-Mobile USA, CTIA - The Wireless Association, Clearwire, the National Center for Missing and Exploited Children, Andrew Jay Schwartzman of the Media Access Project, The National Association of Regulatory Utility Commissioners, The National Center for Missing and Exploited Children, and Free Press.

Matthew Lasar
Matt writes for Ars Technica about media/technology history, intellectual property, the FCC, or the Internet in general. He teaches United States history and politics at the University of California at Santa Cruz. Emailmatthew.lasar@arstechnica.com//Twitter@matthewlasar

15 Reader Comments

I may not be fully up to speed on my FCC regulation, but wouldn't this policy still make filtering illegal content even harder? If an ISP filters out legal traffic mistakenly in an attempt to block illegal content, wouldn't that be a violation of net neutrality? They could still filter some traffic, but I would guess the MPAA would still be disappointed...

Nothing beats regulation better than competition. If we truly believe market forces are created by consumer demands then there's no need for regulation. If, on the other hand, 60% of all Internet connections go through 3 carriers, end-to-end, then we have a real problem.

The internet requires very very little investment. If in fact, the investment is 10:1, Billing systems to Network services, then our investments are upside down. Attracting more investment to the telcom business by simply billing more for services is crazy-insane. It keeps us in the stone-age.

The only reason there *is* an internet is because engineers, students, universities, the DoD and National Science foundation cooperatively built on. The crap we have on top of those original RFCs is just that, more crap. We have a few innovations in media encoders, nearly *zero* innovation in email - causing it to be the most graphic example of a hugely valuable resource going to crap under the weight of corporate interests.

Email could easily be fixes simply by incorporating a 'friends' policy in SMTP or MTA and in the user-agent. No one would be able to send me anything unless they first send a friend-request.

How simple is that? A standard 'okay to communicate' with validation. Add simple encryption to the email and you have the *same legal basis* for email as you do for US Postal Mail. You need a Court Order to open it. We're still living in 1990, when the Internet was a closed, research network, where commercial interests were not allowed, and everyone knew not to SPAM or advertise - those years are long gone.

A grand solution to Net Neutral Internet is to let AT&T, Verizon and Comcast have the Internet as it stands and produce a new IPV6 Virtual Private network that requires simple behavior much like the roots of the Internet - netiquette. Those roadways would be entirely funded at one tenth the cost of AT&T's or Verizon's networks, since the *billing equipment* is 1/10th the complexity..

No one is asking for different fees for night time, day time, off peak, destination, or source based, content altered, 12 tiered bandwidth tied to contractual cross commitments among content, transit and artist rules produced by a back room committee, with *no hope* of ever being regulated - much like the black goo still covering the financial computing world.

We need competition, not more regulation by Congress. Regulation breeds corruption. Competition produces efficiencies and innovation that are public benefits.

Break up the delivery of Internet connections and their content into fiber backbone, middle mile and end-user connections at minimum...

This is frightening news.. Getting Congress to start looking *into* packets and authorizing the big boys to do whatever packet inspection, billing lookup and routing based on that is horrifying.

Today the majors all over bill insanely. How in the world will anyone build an oversight of billing engines, when the people who make the most powerful billing machinery can't build them to any guarentee of accuracy.

Competition fixes that as well. Break them up, don't empower Congress more and Big Business, smaller is better on both sides.

I may not be fully up to speed on my FCC regulation, but wouldn't this policy still make filtering illegal content even harder? If an ISP filters out legal traffic mistakenly in an attempt to block illegal content, wouldn't that be a violation of net neutrality? They could still filter some traffic, but I would guess the MPAA would still be disappointed...

Honestly, I don't see how ISP content blocking could be effective. By the time a court rules that a site is illegal, the pirates will have already moved on. (Obviously there would be massive abuse if no court decision is required.) Also, it's hard to imagine ISPs installing blocking equipment unless the MPAA pays for it. Hopefully "transparency of network management practices" also includes documenting any such blocking so that it's less likely to be abused; we don't want a repeat of the censorware scandals.

Wait a second. I think you are conflating two different types of meetings, apples and oranges.

One type you mention above is the single-party meetings with the commission that happen all of the time.

The second type, about which we are crying foul, are multi-party negotiations among opposing parties that are being convened by the FCC chairman's office. These are most certainly not open, and there's no way for the public to know what's being discussed -- even though the FCC is supposed to be running an open and transparent rulemaking process about Net Neutrality and "Title II reclassification" as we speak.

Look at the bullet points on the most recent multi-party meeting. Do you know where each party stands on those issues? Where the lines in the sand are? Why is "legislation" being discussed in private at the FCC? What language is being proposed for the non-discrimination standard? Is it clear from those ex parte filings that AT&T and Verizon completely oppose any rules applying to wireless networks? Can you tell from these filings what the Commission is proposing as acceptable language, or where they are pushing a compromise?

These vague ex partes violate the spirit of the ex parte rules, and they certainly violate reforms Genachowski has claimed to support to bolster greater openness and transparency. In other words, these are closed-door, backroom meetings to hammer out a compromise on the most pressing issues facing the FCC -- and only the biggest companies are invited. We see that as a problem.

Yes, we are technically a member of the Open Internet Coalition, along with dozens and dozens of other groups who have supported Net Neutrality. But somehow Google and Skype, who are also members of the OIC, deserve a seat at the table but no one else? I guess to get a spot you have to not only be part of the coalition but also be in business with a wireless phone carrier.

Is it really so outlandish for Free Press to suggest that the FCC should perhaps have more than just Silicon Valley giants and ISP giants represented when it is deciding the future of the Internet? Is it radical to ask that these ex partes actually contain some substance on what's being negotiated? Where are small business representatives? Where are consumer representatives? Where are civil rights representatives? Where is the open, public process in the light of day?

The story fails to mention that Free Press is a member of the Open Internet Coalition. Their point of view has been amply represented by OIC leader Markham Eriickson in the meetings Free Press complains about, so they're really saying "how dare you hold a secret meeting that includes us."

The story fails to mention that Free Press is a member of the Open Internet Coalition. Their point of view has been amply represented by OIC leader Markham Eriickson in the meetings Free Press complains about, so they're really saying "how dare you hold a secret meeting that includes us."

Why didn't you mention this, Matthew?

TFA wrote:

June 22

A small battalion of corporate biggies piled into the offices of Lazarus' office to talk up "details relating to prospective legislation relating to open Internet principles." The attendants included representatives from Verizon, Google, Skype, and the National Cable and Telecommunications Association, but it also included a rep from the Open Internet Coalition, which includes Free Press.

Sorry Matthew, on reading the story closer I see you did mention that Free Press is a member of OIC. My mistake.

I see Craig Aaron is shedding crocodile tears above re: his organization's "technical" membership in OIC and lack of information re: the meetings. I find this quite odd; you're either a member of OIC or you aren't, and if Free Press is not getting good information from OIC about the meetings, why remain a part of the pro-neutrality coalition? We've seen that Free Press also coordinates strategy with Silicon Valley giants - the emails were disclosed this week - so it's unlikely they're in the dark about what's being discussed at the FCC.

It's also false and misleading to say that the FCC is deciding the future of the Internet in these meetings. They're discussing suggestions to be made to Congress, and Congress will ultimately decide the future of Internet services in the United States. Closed-door meetings are being held on the Hill to further that endeavor, attended by Derek Turner, Free Press' Policy Director.

All these disingenuous complaints don't help FP's standing in the policy community.

FP might have a Hobson's choice, accept the details the OIC is willing to divulge or get no details at all. For example, what is preventing the OIC or FCC from publishing the transcripts of the meeting? Or at a very minimun the specific proposals being made. The complaints may or may not be disingenuous, more specifics would be needed to be sure.

Is it really so outlandish for Free Press to suggest that the FCC should perhaps have more than just Silicon Valley giants and ISP giants represented when it is deciding the future of the Internet? Is it radical to ask that these ex partes actually contain some substance on what's being negotiated? Where are small business representatives? Where are consumer representatives? Where are civil rights representatives? Where is the open, public process in the light of day?

Maybe because the entire debate is really a battle between these two industries and not really a consumer issue? One side is trying to tie the hands of the other with legislation so they can destroy their business models and limit the long-term costs for their own. The fact the FCC has considered appeasing these concerns was a major loss for the rest of us, but I doubt you'd even entertain that fact.

Your only concern, after your special interest group helped fear-monger the issue into the headlines, is that you're not allowed at the diplomatic table and it pisses you off. And now you're chastising one of your loyal followers, Lasar, who has spewed your bullshit after almost every one of your silly press releases.

Stop whipping the greyhound. He did everything you asked and more even though neither of you realized you could never place, much less win the race.

Is the author saying that the meetings aren't closed and secret because the government tells us its version of what happened, after the fact? It's a good thing government officials speak only in objective truths!

Where are consumer representatives? Where are civil rights representatives? Where is the open, public process in the light of day?

I'd think CDT and PK would count as "consumer reps" to some degree. What's actually keeping civil rights groups from these meetings? Lazarus' blog at broadband.gov clearly says "As always, our door is open to all ideas and all stakeholders." Is that not true?

"Despite public outrage and repeated promises of transparency, the FCC continues to meet behind closed doors with the largest companies to negotiate a secret deal that would short circuit public participation in policymaking that will shape the Internet for a generation," declared Free Press's Josh Silver in a message just sent to us. "The great irony here is that the FCC's 'transparency' policy is part of the negotiations behind closed doors."

Wow...i guess this Josh Silver guy is only now figuring out how all bills in Congress come up for a vote and go either up or down. The guy sounds so naive that I'm wondering if he's started shaving yet.

Here's the way it works: every time a a politically charged bill comes up before Congress, or the FCC, or any high-powered bureau of political appointees in Washington, there are Congressmen on both sides of the aisle who oppose it and those who support it. They arrange private meetings over lunch or a game of golf or in an empty office somewhere where they, or their aides, or both, will get together to discuss their differences to see if hammering out a compromise is possible. What both sides are looking for is a rationale that will make both sides look good politically regardless of whether the vote goes up or down. It's called politics, Josh, and lest you forget it, the FCC is a body comprised 100% of political appointees.

Next thing Josh needs to understand is that while he may personally be "outraged" by net neutrality, the American public surely is not, and the topic rates so low in the public mind that it doesn't even come up at cocktail parties. As far as the "transparency" complaint goes, well--I think to the people actually involved in hammering out whatever legislation or rules that will emerge--things are completely transparent. And if Josh was one of those people pertinent to the process then it would be transparent for him, too. And of course there's the most salient reason why things aren't yet as transparent as Josh would like them to be: it's because the details haven't been hammered out yet and so there is nothing concrete to talk about--things are still very much in the formulation stages.

I think that probably the main reason that Josh's angst and conspiratorial melodrama don't register with the great bulk of the American public is that they, like me, have enjoyed largely unfettered Internet access over the last decade. I can truthfully say that of all the web pages I have tried to access, and the files I have tried to download since 1998, I have been denied not a single one by either an ISP or a corporation or anyone, including the government.

Many people share my Internet service experience of the last decade, and aren't keen on the Federal government getting involved with content regulation because we don't want the government deciding what's "good for us to know" and what isn't. I think most net neutrality proponents haven't thought about the issue in those terms, because they imagine the government to be a kind of savior figure in every instance. I think it's for sure that Josh has never thought about the subject from the standpoint of the possible government abuse that could result from all of this "negotiating." It's surely a point worth considering.

Is it really so outlandish for Free Press to suggest that the FCC should perhaps have more than just Silicon Valley giants and ISP giants represented when it is deciding the future of the Internet? Is it radical to ask that these ex partes actually contain some substance on what's being negotiated? Where are small business representatives? Where are consumer representatives? Where are civil rights representatives? Where is the open, public process in the light of day?

Maybe because the entire debate is really a battle between these two industries and not really a consumer issue? One side is trying to tie the hands of the other with legislation so they can destroy their business models and limit the long-term costs for their own. The fact the FCC has considered appeasing these concerns was a major loss for the rest of us, but I doubt you'd even entertain that fact.

Your only concern, after your special interest group helped fear-monger the issue into the headlines, is that you're not allowed at the diplomatic table and it pisses you off. And now you're chastising one of your loyal followers, Lasar, who has spewed your bullshit after almost every one of your silly press releases.

Stop whipping the greyhound. He did everything you asked and more even though neither of you realized you could never place, much less win the race.

Having read several of your anti-neutrality posts, I'm finally curious enough to ask one simple question: Is your position based on denial of the seemingly self-evident chilling effect that charging for priority transit would have on the progress of the Internet, or is it that you simply prioritize ever-higher ISP profits over said progress?

Next thing Josh needs to understand is that while he may personally be "outraged" by net neutrality, the American public surely is not, and the topic rates so low in the public mind that it doesn't even come up at cocktail parties.

When the public knows more about the sex lives of professional athletes than a healthcare bill, or when my neighbor is convinced the Iraq war caused the recession, how much the general public knows about net neutrality does not nullify it's importance.

IntelPatriot wrote:

Why shouldn't ISPs take decisions in the interest of their subscribers?

You don't complain when an owner takes decisions regarding their employees or a parent takes decisions for their children.

ISPs have won this right by competing and proving themselves in the market.

You mean the regionial monopolies and duopolies that are impossible to break into without government subsidies? THOSE competing markets?